TRAC: Many Unaccompanied Minors Remain Unrepresented In U.S. Immigration Court, Thus Drastically Diminishing Their Chances Of Success

http://trac.syr.edu/immigration/reports/482/

Transactional Records Access Clearinghouse
==========================================

FOR IMMEDIATE RELEASE

Greetings. Despite a dramatic drop-off in new Immigration Court cases involving unaccompanied children (UAC) this year, the backlog of pending children’s cases has continued to rise. The latest case-by-case court data show that the court backlog of these children’s cases reached an all-time high of 88,069 at the end of August 2017. The current backlog of 88,069 represents four times the number of new UAC cases that reached the court during the first eleven months of FY 2017.

Litigation on some UAC cases necessitate complex applications for relief that may involve other government agencies and can stretch on for several years. There are still 16,693 cases pending that began during FY 2014. However the largest number of UAC cases still pending were initiated during the last two years.

Previous research has shown that individuals who have an attorney have much higher odds of success in Immigration Court. Despite many initiatives to increase the availability of representation in children’s cases, still nearly three out of ten children whose cases began during FY 2015 were unrepresented. (A total of 61 percent of these cases have already been decided.) Although with additional time some children may be able to locate attorneys, the current figure rises to four out of every ten children who remain unrepresented for cases that began during FY 2016, and jumps to three out of four for cases that originated during FY 2017.

For the full report, go to:

http://trac.syr.edu/immigration/reports/482/

For additional details see the accompanying free web-based tool which provides access to the data TRAC has compiled on these cases:

http://trac.syr.edu/phptools/immigration/juvenile/

In addition, many of TRAC’s free query tools – which track the court’s overall backlog, new DHS filings, court dispositions and much more – have now been updated through August 2017. For an index to the full list of TRAC’s immigration tools go to:

http://trac.syr.edu/imm/tools/

If you want to be sure to receive notifications whenever updated data become available, sign up at:

http://tracfed.syr.edu/cgi-bin/tracuser.pl?pub=1&list=imm

or follow us on Twitter @tracreports or like us on Facebook:

http://facebook.com/tracreports

TRAC is self-supporting and depends on foundation grants, individual contributions and subscription fees for the funding needed to obtain, analyze and publish the data we collect on the activities of the U.S. federal government. To help support TRAC’s ongoing efforts, go to:

http://trac.syr.edu/cgi-bin/sponsor/sponsor.pl

David Burnham and Susan B. Long, co-directors
Transactional Records Access Clearinghouse
Syracuse University
Suite 360, Newhouse II
Syracuse, NY 13244-2100
315-443-3563

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I go back top my blog from yesterday noting former Obama OIL Honcho Leon Fresco’s court argument that counsel was not necessary for due process in cases involving children in Immigraton Court. Simply not true!

Whatever happens with unrepresented children in Immigration Court, it isn’t due process, except in rare cases. We should all be ashamed that two consecutive Administrations have failed “to do the right thing” with children’s due process rights. It’s not about cost, convenience, magnets, or any other such BS. It’s about due process, fairness, justice, and ultimately our Constitutional system and human decency.

PWS

09-28-17

DEAN KEVIN JOHNSON PREVIEWS JENNINGS V. RODRIGUEZ (INDEFINITE PREHEARING IMMIGRATION DETENTION) OA IN SCOTUS BLOG

http://www.scotusblog.com/2017/09/argument-preview-constitutionality-mandatory-lengthy-immigrant-detention-without-bond-hearing/

Dean Johnson writes:

“Detention as a tool of immigration enforcement has increased dramatically following immigration reforms enacted in 1996. Two Supreme Court cases at the dawn of the new millennium offered contrasting approaches to the review of decisions of the U.S. government to detain immigrants. In 2001, in Zadvydas v. Davis, the Supreme Court interpreted an immigration statute to require judicial review of a detention decision because “to permit[] indefinite detention of an alien would cause a serious constitutional problem.” Just two years later, the court in Demore v. Kim invoked the “plenary power” doctrine – something exceptional to immigration law and inconsistent with modern constitutional law – to immunize from review a provision of the immigration statute requiring detention of immigrants awaiting removal based on a crime.

How the Supreme Court reconciles these dueling decisions will no doubt determine the outcome in Jennings v. Rodriguez. This case involves the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing and possible release from custody. Relying on Zadvydas v. Davis, the U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction that avoided “a serious constitutional problem” by requiring bond hearings every six months for immigrant detainees. The court of appeals further mandated that, in order to continue to detain an immigrant, the government must prove that the noncitizen poses a flight risk or a danger to public safety.”

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Read the rest of Dean Johnson’s analysis at the link.

This is huge in human rights. A “W” for the Administration, which many observers view as likely with the advent of Justice Gorsuch, will essentially “Green Light” the Trump-Sessions-Miller plan to construct the “New American Gulag.” The Gulag’s “prisoners” will be noncriminal migrants (many of them women fleeing violence in the Northern Triangle) whose only “crime” is to assert their rights for due process and justice under our laws.

The concept that migrants have rights is something that sticks in the craws of the White Nationalists. So, punishing them for asserting their rights (with an objective of coercing them into giving up their rights and leaving “voluntarily”) is the next best thing to denying them entirely (which the Administration routinely does whenever it thinks it can get away with it — and the Article IIIs have largely, but not entirely, been asleep at the switch here).

And, make no mistake about it, as study after study has shown, the “conditions of civil detention” in the Gulag are substandard. So much so that in the last Administration DHS’s own study committee actually recommended an end to private immigration detention contracts and a phasing out of so-called “family detention.” The response of the Trump White Nationalists: ignore the facts and double down on the inhumanity.

Based on recent news reports, DHS immigration detainees die at a rate of approximately one per month. And many more suffer life changing and life threatening medical and psychiatric conditions while in detention. Just “collateral damage” in “Gonzo speak.”

Immigration detainees are often held without bond or with bonds that are so unrealistically high that they effectively amount to no bond. And, in many cases (like the one here) they are denied even minimal access to a U.S. Immigration Judge to have the reasons for detention reviewed.

Plus, as I reported recently, across the nation DHS is refusing to negotiate bonds for those eligible. They are also appealing Immigration Judge decisions to release migrants on bond pending hearings, apparently without any regard to the merits of the IJ’s decision. In other words, DHS is abusing the immigration appeals system for the purpose of harassing migrants who won’t agree to waive their rights to a due process hearing and depart!

Also, as I pointed out, in the “no real due process” world of the U.S. Immigration Courts, the DHS prosecutors can unilaterally block release of a migrant on bond pending appeal. In most cases this means that the individual remains in detention until the Immigration Judge completes the “merits hearing.” At that point the BIA determines that the DHS bond appeal is “moot” and dismisses it without ever reaching the merits. Just another bogus “production” statistic generated by EOIR!

Oh, and by the way, contrary to “Gonzo” Session’s false and misleading rhetoric on so-called “Sanctuary Cities,” one of the things jurisdictions that rationally choose to limit cooperation with DHS enforcement to those with significant criminal records are doing is protecting their law-abiding, productive migrant residents and migrant communities from the patent abuses of the “American Gulag.” “Gonzo policies” predictably drive reasonable people to take protective actions.

But, some day, the bureaucrats, complicit judges (particularly life-tenured Article III Judges, like the Supremes), reactionary legislators who turn their backs on human suffering, and misguided voters who have allowed this human rights travesty to be perpetrated on American soil will be held accountable, by the forces of history if nothing else.

PWS

09-28-17

BIA’S BOGUS BLATHER BLOWS BY BASICS IN TRYING TO “GET TO NO!” — Appellate Immigration Judges Invade IJ’s Authority To Reverse Favorable Credibility Determination — ALIMBAEV v. ATTORNEY GENERAL — When Will Article III Judges Stop Ducking The Glaring Constitutional Due Process Problems With The Current U.S. Immigration Court Structure?

http://www2.ca3.uscourts.gov/opinarch/164313p.pdf

Alimbaev v. Attorney General, 3rd Cir., 09-25-17, published

Before: JORDAN and KRAUSE, Circuit Judges,

and STEARNS, District Judge.*

* The Honorable Richard G. Stearns, United States District Judge for the District of Massachusetts, sitting by designation.

OPINION BY: Judge Krause

KEY QUOTE:

“This disconcerting case, before our Court for the second time, has a lengthy procedural history marked by conflict between the Board of Immigrations Appeals (BIA) and the Immigration Judge (IJ) and fueled by troubling allegations that Petitioner, an Uzbek national, relished watching violent terroristic videos, while apparently harboring anti-American sympathies. The issue on appeal, however, is whether the BIA correctly applied the clear error standard of review, as required, when reviewing the IJ’s factfinding in this case—an inquiry that highlights the role of faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity are not usurped by emotion, regardless of the nature of the allegations. Because we conclude that the BIA misapplied the clear error standard when reversing the IJ’s finding that Petitioner’s testimony was credible, we will grant the petition for review of the BIA’s removal order, vacate the denial of Petitioner’s applications for adjustment of status, withholding of removal, and protection under the Convention Against Torture (CAT), and remand once more to the BIA.”

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Read the entire, rather lengthy, decision at the above link.

While the Third Circuit Judges were obviously unhappy with the performance of the BIA Panel here, I’ll bet decisions like this don’t hurt the Appellate Immigration Judges involved wth their boss, Jeff Sessions. Running over the regulations, Due Process, fairness, impartiality, and objectivity in the name of getting perceived “bad guys” out of the country is probably what “Old Gonzo” expects and even demands from his wholly owned judiciary.

There is a massive gap in expectations here. The Third Circuit speaks of “faithful adherence to applicable standards of review in preserving the rule of law, safeguarding the impartiality of our adjudicatory processes, and ensuring that fairness and objectivity.” But a U.S. Immigration Court System (including the BIA) headed by the “Immigration Enforcer in Chief,” could not possibly achieve “impartiality, fairness, and objectivity” either in appearance or in practice.

Sessions exudes anti-immigrant enforcement zeal, xenophobia, White Nationalism, and disregard for the rule of law as it is commonly understood on a daily basis. He also regularly misinterprets statistics to paint a false picture of an “alien crime wave” and positively gloried in the chance to publicly disrespect and threaten to remove Dreamers.

How could these very clear messages that Sessions despises both legal and undocumented immigrants of all types, considers them bad for America, and would like them gone and restricted in the future, possibly not get down to to the mere civil servants who work for him? Do you think that Sessions is really going to defend an Immigration Court and/or a BIA that publicly and regularly stands up for the Due Process rights of foreign nationals and their rights to favorable consideration under many provisions of the immigration law? That doesn’t fit with his “restrictionist myth” that all undocumented immigrants are “law breakers” who deserve to be “punished” by removal from the United States.

Look how Trump heaps disrespect on Article III Judges who don’t go along with his illegal programs. How do you think he’s going to react if one of Jeff Sessions’s wholly owned judges stands up to one of the Administration’s gonzo legal positions or illegal policies? And, neither Immigration Judges nor Appellate Immigration Judges have the protections of life tenure. Do you seriously think that Jeff Sessions is really going to stand up for the right of one of his judges to “Just Say No” to Trump. In any event, Sessions has the the totally inappropriate and legally questionable authority to reverse any Immigration Court decision he doesn’t like anyway. That robs the whole system of any semblance of fairness, impartiality, and objectivity.

So, the Third Circuit Judges are tiptoeing around the real problem here. You can’t possibly have “impartiality, fairness, and objectivity” from an Immigration Court run by Jeff Sessions, a man who throughout his long career has demonstrated none of those characteristics. At some point, the Third Circuit Judges and their Article III colleagues elsewhere are going to have to face up to the glaring constitutional due process problems with the current U.S. Immigration Court structure. The question is when?

PWS

09-27-17

RACIST MILLER, GOP XENOPHOBES SEEK TO UNDERMINE “DREAMER DEAL” WITH RESTRICTIONIST, WHITE NATIONALIST AGENDA!

https://www.washingtonpost.com/powerpost/growing-list-of-conservative-demands-threatens-bipartisan-deal-on-dreamers/2017/09/26/a3df3ba8-a23a-11e7-b14f-f41773cd5a14_story.html

Mike DeBonis reports in the Washington Post:

“An emerging list of conservative demands is threatening to derail the fledgling bipartisan effort to preserve the Obama administration program protecting from deportation 690,000 illegal immigrants brought to the United States as children.

President Trump discussed the outlines of a potential deal to protect those covered by the Deferred Action for Childhood Arrivals program with Democratic congressional leaders at a White House dinner this month. The tentative deal would couple permanent protections for those immigrants with improved border security.

But key conservative Republicans in the House and Senate are coalescing around a broader suite of policies as a condition of backing a deal, and that has Democrats and moderate Republicans warning that the current, fragile consensus could quickly break apart.

In the Senate, James Lankford (R-Okla.) and Thom Tillis (R-N.C.) introduced a conservative alternative this week to the Dream Act, a bipartisan bill that has some moderate Republican support and that Democrats want to pass as part of any deal with Trump.

[Trump, top Democrats agree to work on deal to save ‘dreamers’ from deportation]

The Lankford-Tillis bill, known as the Succeed Act, sets out a more onerous path to legal status for the immigrants in question, and it includes provisions barring them from taking advantage of existing laws that allow legal immigrants to petition authorities to allow foreign relatives to come to the United States.

Critics say those laws foster “chain migration,” inflating the amount of legal immigration. Eliminating the possibility of petitioning on behalf of relatives abroad is among another set of policies that House conservatives are pursuing on a separate track.

Key White House officials, including senior adviser Stephen Miller, have worked with members of the hard-right House Freedom Caucus and other Republican lawmakers to hone a list of policy demands that go beyond the border security provisions on which Democrats have signaled they are willing to negotiate.

It is unclear to what extent Trump himself will support these provisions as part of the effort to negotiate a solution for “dreamers,” as the childhood arrivals are known. But the proposals are gaining adherents among some of the president’s strongest backers in Congress.

[Trump administration announces end of immigration protection program for ‘dreamers’]

Rep. Mark Meadows (R-N.C.), the Freedom Caucus chairman, said in an interview this week that a working list of policies that conservatives may demand includes ending the “chain migration” laws; mandating that employers use E-Verify, an online federal system to determine people’s eligibility to work in the United States; stepping up enforcement against those overstaying legitimate visas; and limiting protections for those who seek asylum at U.S. borders.”

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Read the rest of the article at the link.

These toxic dudes never miss a chance to push their White Nationalist anti-American agenda. Frankly, we don’t need to plow more resources into already perfectly adequate border security, and there is certainly no need for more immigration agents who have so little to do now that they can squander time busting law-abiding American residents, guarding their agency bosses, staking out hospitals and courthouses, and screwing up already out of control Immigration Court dockets. Where’s the accountability for efficient and rational use of resources? But, those could be trade-offs that the Dems could make to save the Dreamers. (Honestly, given some of the other garbage the GOP has put out there, funding “The Wall” seems like the least harmful of the trade-offs in human terms. Money gets wasted, America looks foolish, but nobody gets hurt and it won’t tank our economy like the restrictionist agenda on legal immigration would).

But, the hard core xenophobic White Nationalist agenda being pushed by Miller, the “Freedom” Caucus, and other restrictionists out to limit legal immigration, deny due process, and make a mockery out of our legal and moral obligations to refugees — No Way! The Dems would have to “Just Say No.”

The “Ace in the Hole” for the Dems: There is neither the ability nor the moral willingness on the part of the majority of decent Americans to deport 800,000 American young people. They might end up “hanging in limbo” till some future date when responsible government once again gains the upper hand over the “wrecking crew.”

PWS

09-27-17

NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW — A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATON COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM — By Paul Wickham Schmidt, United States Immigration Judge (Retired)

NO MORE BUREAUCRATIC BS – AMERICA NEEDS AN INDEPENDENT ARTICLE I IMMIGRATION COURT NOW
A RESPONSE TO THE DOJ’S ATTEMPT TO “COVER UP” THE SCANDALOUS, SELF-CREATED, DUE-PROCESS DENYING IMMIGRATION COURT BACKLOG EXPOSED BY NBC 4 DC’S I-TEAM
By Paul Wickham Schmidt
United States Immigration Judge (Retired
Let’s look at a few pieces of the EOIR “response” to the I-Team’s Recent Expose. You can read that full exercise in bureaucratese in a separate blog right here: http://wp.me/p8eeJm-1tn

First, the EOIR bureaucracy has no coherent plan to address the backlog that now has risen to more than 628,000 pending cases (even more than at the time Jodie interviewed me) notwithstanding more U.S. Immigration Judges on board! The agency is “studying” the matter. Usually that means that politicos at the DOJ are looking for ways to further truncate Due Process and fairness for respondents in the Immigration Courts.

“Studying” the matter. Oh, please! Let’s look at the most glaring failure highlighted by Jodie, the failure to have even a rudimentary e-filing system. Back in 2001, a group of us, including computer wonks, field personnel, and Senior Executives were assigned to an e-filing project. We submitted a detailed report, complete with plans for a pilot program to the EOIR Executive Group, where it promptly was buried. More than 15 year later, and following several more waste of time studies, there still is no e-filing system in the U.S. Immigration Courts! Not even a viable pilot program! In the meantime, almost every other court system in America has implemented e-filing. For heaven’s sake, even the local courts in Wisconsin have e-filing capability!

Second, EOIR makes the totally disingenuous statement that: “Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. To this end, EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance.”

This is a blatant misrepresentation of what caused the real problem and a grotesque failure to accept responsibility! The current crisis has little, if anything, to do with Immigration Judge productivity (at an average of 750 completions per judge, U.S. Immigration Judges are already working 50% above the recommended maximum level for their positions — if anything, as shown by some of the recent gross errors exposed by U.S. Circuit Courts, both the Immigration Judges and the BIA Judges should be slowing down to get things right — “haste makes waste”).

No the real problem here is quite simple: bureaucrats at EOIR, the politicos at DOJ, and Congress. Let’s start with Congress. While Congress has belatedly provided some extra positions and funding for the Immigration Courts, for years Congress has been responsible for overfunding DHS enforcement while underfunding the Immigration Court system.

Moreover, the idiotic Government shutdown during the Obama Administration hurt immeasurably. During at least one such shutdown, the vast majority of Immigration Judges, those assigned to the non-detained dockets, were determined by the DOJ to be “nonessential,” sent home on “furlough,” and our dockets were cancelled. When we finally returned to court, there was docket chaos. The system really never has recovered from that man-made disaster. Moreover, both Congress’s failure to fund and DOJ’s idiotic designation of us as “nonessential” sent strong messages that the entire Immigration Court is a “who cares” operation from both a Congressional and an Administration standpoint. And mindless hiring freezes resulting from incompetence in Congress and the Executive Branch didn’t help either.

Then, years of “Aimless Docket Reshuffling” at the behest of DOJ politicos carrying out improper enforcement initiatives through the courts turned chaos into absolute bedlam! Senior Immigration Judges were reassigned from “Merits Dockets” to “meet and greets” for Unaccompanied Minors who really belonged before the DHS Asylum Office. Other judges were taken off of “ready for trial” merits dockets and assigned to hear cases of recently arrived “Adults With Children,” many of whom had not received sufficient time to find lawyers and whose cases were often “Not Quite Ready For Prime Time.” Judges were detailed from full “home” dockets to the Southern Border where they often weren’t needed or didn’t have enough work to keep busy. Then, the Trump Administration took judges off of Merits Dockets that had been pending for years and reassigned them to obscure detention courts, where they often were not fully occupied or were taking over dockets from other judges who were left with nothing to do.

The DOJ/EOIR bureaucracy long ago deprived sitting Immigration Judges of any meaningful control over their local dockets. To now insinuate that Immigration Judge “productivity” or “continuances granted by local Immigration Judges” are significant causes of the problem is an outrageous attempt to cover up the sad truth. Additionally, over the past four Administrations, the DOJ has refused to implement Congress’s statutory grant of contempt authority to U.S. Immigration Judges. This deprives Immigration Judges of even the most rudimentary tools possessed by judges of comparable authority for maintaining order and control of their courts.

Then there are continuances. As Hon. Jeffrey Chase and I have both pointed out in our separate blogs, the attempt to blame judges and overwhelmed private counsel, particularly those serving for NGSs or pro bono, for requesting too many continuances is totally bogus. The majority of the lengthy continuances in Immigration Court are the result of Aimless Docket Reshuffling imposed by the politicos at DOJ and carried out by compliant administrators at EOIR who have lost sight of their due process mission but not of the need to save their jobs by cooperating with the politicos.

As Jodie pointed out, there are lots of folks out there, many with potentially winning cases, who are ready and would like their “day in court.” But, the system is too busy shuffling things around to satisfy the President’s Executive Orders and trying to fulfill the Attorney General’s enforcement priorities to deliver justice in a reasonable, predictable, and orderly manner.

The private bar and NGO attorneys, many of whom serve pro bono or low bono, are the unsung heroes of this system. They are the only reason the system hasn’t completely collapsed yet! Their intentional mistreatment and the disrespect showered on them by spineless bureaucrats at EOIR and the cowardly politicos at DOJ is nothing short of a national disgrace!

Then, let’s take a closer look at the DOJ/EOIR hiring fiasco! According to a recent GAO study recommending improvements at the Immigration Courts, Immigration Judge hiring has taken an astounding average of two years! That’s longer than it takes for a Senate-confirmed political appointment or than it took the Roosevelt Administration to build the Pentagon during the New Deal! But, the results of this glacial, “Rube-Goldberg” process are disturbingly predictable and pedestrian. Nearly 90% of the Immigration Judges hired over this and the past Administration came from prosecutorial or other government backgrounds. With due respect, one could probably have produced similar results by “blind drawing” applications from senior government attorneys from a box. Neither EOIR nor DOJ has put forth an efficient, transparent, merit-based program to replace this mess, although many worthy models exist — such as the merit hiring procedures for U.S. Bankruptcy Judges and Magistrates which usually involve widespread input from leading practitioners in the areas they will be serving.

Notwithstanding the current “crisis,” EOIR and DOJ are sitting on an Immigration Judge vacancy rate of 15%! There are currently 55 judicial vacancies! EOIR was only able to hire and bring on 64 new Immigration Judges during the entire past year. That will barely be enough to fill the currently vacant positions and any retirements or other departures. So, the idea that a DOJ plan to budget for more judges is going to solve this crisis any time in the foreseeable future is nonsense.

Let’s take a quick look at the numbers in the DOJ “never-never land.” They project 449 Immigration Judges by the end of FY 2018, which is September 30, 2018, one year from now. Let’s also assume the highly unlikely: that Congress grants the request, the money is appropriated, additional courtrooms are built, additional staff is hired, all the judicial positions are filled, and the additional Immigration Judges are all on board and up to speed by September 30, 2018.

449 Immigration Judges could at most, complete approximately 337,000 cases without impeding due process. Therefore, using the DOJ’s own figures, and giving the most optimistic outlook possible, it would take nearly two years, practically to the end of this Administration, just to complete all of the cases currently on docket if no additional cases were filed! The idea that 449 Immigration Judges could do that plus handle incoming cases without creating a new backlog is facially absurd. DOJ’s own numbers refute it. What is clear is that neither the politicos at DOJ nor the bureaucrats at EOIR have any idea of how to actually solve the backlog problem and reestablish order in the Immigration Courts.

So, what really needs to be done!

First and foremost, we need an independent U.S. Immigration Court outside the DOJ. And that means a return to Due Process as the sole function and guiding light of the Immigration Court just like it is for all other independent courts. DHS Enforcement priorities should be considered and accommodated where possible without compromising due process. But, they are just one of many factors that go into running an efficient due process court system. DHS Enforcement should not be “driving the train.”

Given that approximately half of the individuals now in Immigration Court appear to be entitled to some form of relief, independent U.S. Immigration Judges could develop ways to force the DHS to identify these cases and either resolve them outside of court or move them up to “short dockets” for quick resolutions based largely on stipulations and focused testimony or legal arguments.

Moreover, I know from hard experience that even though independent Article III judges were technically not supposed to review “prosecutorial discretion“ they had many creative ways to basically tell the INS (now DHS) to get certain low priority or extreme humanitarian cases off the docket — or else. The current Administration’s abusive removal of prosecutorial discretion from local DHS prosecutors is a major contributing factor in the current docket mess. An independent court would be able to stand up to this kind of nonsense, rather than “going along to get along.” No court system in American operates without a heavy dose of PD from the prosecutors.

Additionally, implementation of contempt authority, extending to both private attorneys and Government prosecutors, would give Immigration Judges real clout in stopping abuses of the court’s docket and moving cases along in a failure and reasonable manner.

Second, the EOIR bureaucracy needs to be replaced with a real court structure patterned on other Federal Courts. I’d hazard to say that no other functioning court system in America has as Byzantine and as bloated a bureaucracy as EOIR. Far too many of the positions and resources are in “Headquarters” in Falls Church rather than in the local courts where they belong. Docket control needs to be returned to sitting Immigration Judges who are in the best position to work with the local bar, pro bono providers, the DHS Office of Chief Counsel, and the Court Administrator to establish the most efficient and fair ways of scheduling cases and moving along dockets given local conditions and limitations.

And “Job One” at the local Immigration Court level should be to work with all parties to insure that Immigration Court cases are docketed and scheduled in a manner that insures, to the maximum extent humanly possible, that no individual who wants a lawyer is required to appear without one. Representation by competent counsel is the single most important ingredient of achieving due process in the U.S. Immigration Courts.

Third, the U.S. Immigration Courts need a new professional Administrative Office patterned on the Administrative Office for U.S. Courts and responsible to a Judicial Council, not politicos at the DOJ. Courtroom planning, technology, security, files management, training, planning for the future, and hiring are all not up to professional court management standards in the current system. In particular, the outdated, often unreliable technology and inadequate space are glaring issues in a high volume system like the Immigration Courts.

Also, the current judicial selection system is a bad joke. It is neither transparent nor timely, and it totally lacks credibility in the “real world” of immigration practice. The Immigration Courts need a non-partisan, merit-based, efficient hiring system that gives local practitioners and judges as well as government counsel some meaningful input while producing results in a timely fashion. There are many merit-based models out there like those for hiring U.S. Bankruptcy Judges, U.S. Magistrates, and Judges for the Superior Court of DC.

Fourth, the system needs an Appellate Court that acts like an independent appellate court not a service center catering to the politicos at the DOJ. The current BIA’s lack of diverse backgrounds among its Appellate Immigration Judges and glaring lack of Immigration Court or asylum expertise has resulted in a weak body of asylum law and insufficient control over wayward judges who are unwilling to grant relief in appropriate situations. There are many asylum cases out there in the backlog that should and could be rapidly granted. Moreover, many of them probably should have been granted at the DHS Asylum Office. The current Board has failed to take appropriate corrective action in those courts where hostility to or misinterpretation of laws favorable to respondents has resulted in indefensibly low rates of granting relief. This, in turn, encourages the DHS to keep cases on the court docket that properly should be settled out of court, returned to the Asylum Office, or sent to the USCIS.

The current Board “is what it is,” It can’t really help itself, as a result of questionable choices outside of its control made by the politicos at the DOJ over several Administrations. I’m not suggesting that current BIA Judges should not be “grandfathered” into an independent Appellate Division of the Immigration Court. But future Appellate Judge appointments should be strictly merit-based and should be focused on recognizing proven expertise and fairness in applying asylum laws and expertise gained in activities beyond just government service, particularly those in clinical academic practices or serving the pro bono community through NGOs.

Fifth, and finally, the U.S. Immigration Courts need e-filing now! The time for “study” is long over! Existing systems in other courts can be tailored for U.S. Immigration Court use. It’s no longer “rocket science.” It’s “Basic Professional Court Management 101.” It’s time for action, not more studies, unfulfilled promises, and bureaucratic smokescreens! If nothing else, the failure of the DOJ over a number of Administrations to accomplish this very basic ministerial task demonstrates beyond any reasonable doubt its incompetence and inability to administer the U.S. Immigration Courts in anything approaching a minimally professional manner.

Yup, I’ve set forth an ambitious agenda. But, unlike the “DOJ/EOIR BS,” it’s based on real life experience and decades of observation at all levels inside and outside this broken system. If Congress and the Administration can’t get their collective acts together and establish an Independent Article Immigration Court now, there will be a “lock-up” point at which almost everything will stop functioning. There is no way that the current EOIR technology and inadequate planning can keep on absorbing even more cases and even more positions.

And if, as I predict, rather than doing the right thing, this Administration responds with mindless hurry up denials of due process, the cases will start piling up in the Article III Courts and being returned to the Immigration Courts for “do-overs” in droves. I’ve actually seen it happen before in the Bush Administration. But, this is much worse because there are many more cases and this Administration is even more clueless about how to deal with immigration enforcement and the Immigration Court system. In the end, it’s the folks who depend on the Immigration Court system for justice and the overall concept of our courts being able to deliver even-handed justice in a fair and reasonable manner that will be hurt. And, folks, that’s going to affect all of us at some point in the future.

Don’t accept more ridiculous shameful bureaucratic, “do nothing” BS from the DOJ! It’s time to hold DOJ and EOIR fully accountable for their failure to provide basic Due Process in the U.S. Immigration Courts and for Congress to accept their fair share of the blame!

Tell your Senators and Representatives that you’ve had enough of this nonsense and gross waste and mismanagement of government resources! Fixing the U.S. Immigration Courts now must be one of our highest national priorities! Those who would continue to sweep this problem under the rug deserve to be voted out of office! No more BS and excuses; Article I now! Due Process Now!

Other than the above, of course, I think the current system is great!

PWS

09-26-17

READ THE DOJ/EOIR’S (HIGHLY BUREAUCRATIC) RESPONSE TO THE NEWS 4 I-TEAM — The DOJ/EOIR “Plan” Is “No Plan” Because They Are Clueless As To How To Solve The Self-Created Court Backlog Problem Without Stomping All Over Due Process!

jhttp://www.nbcwashington.com/news/local/US-Department-of-Justice-Executive-Office-for-Immigration-Review-Responses-to-I-Team-Immigration-Backlog-Report-446936203.html

“U.S. Department of Justice Executive Office for Immigration Review Responses to I-Team Immigration Backlog Report

What steps have been taken by DOJ/EOIR to combat the backlog?

EOIR is committed to a multi-level strategy to maximize our adjudicatory capacity, including the hiring of more judges, working with our federal partners to make the immigration process more efficient, and the increased use of video-teleconference capabilities. EOIR is undertaking a broad, agency-wide effort to review and reform its internal practices, procedures, and technology in order to enhance immigration judge productivity and ensure that cases are adjudicated in a fair and timely manner across all of the agency’s courts. EOIR records show that through the end of August 2017, the immigration courts had 628,698 pending cases. Although multiple factors may have contributed to this caseload, immigration judges must ensure that lower productivity and adjudicatory inefficiency do not further exacerbate this situation. To this end, EOIR recently issued Operating Policies and Procedures Memorandum 17-01: Continuances (available at https://www.justice.gov/eoir/oppm-log), which provides guidance on the fair and efficient handling of motions for continuance.

How many immigration judges have retired and how many have been sworn in the last two years?

The number of immigration judges who retired or separated during each of the following fiscal years (FY) is as follows: FY 2016, 13, and FY 2017 (through Sept. 15, 2017) 21. EOIR hired 56 immigration judges during FY 2016, and 64 immigration judges during FY 2017 (through Sept. 15, 2017).

How many open positions are there currently for immigration judges?

There are currently 329 immigration judges nationwide, out of EOIR’s current authorized level of 384.

Judge Marks discussed how she thinks the number of immigration judges should be doubled. Is there a goal by EOIR on how many new judges to hire?

As noted in EOIR’s FY 2018 budget request (available here: https://www.justice.gov/jmd/page/file/968566/download), the largest challenge facing the immigration courts is the growing pending caseload. The agency’s FY 2018 budget strategy is a sustained focus on increasing adjudicative capacity in order to meet EOIR’s mission to adjudicate immigration cases by fairly, expeditiously, and uniformly interpreting and administering the nation’s immigration laws.

To implement EOIR’s strategy, EOIR’s FY 2018 budget request includes a requested increase in immigration judge teams (each team consists of one immigration judge and five support staff) that would increase EOIR’s immigration judge corps to 449 and provide 225 additional full-time employees for mission support.”

Published at 5:45 AM EDT on Sep 25, 2017 | Updated at 6:43 PM EDT on Sep 22, 2017

Source: U.S. Department of Justice Executive Office for Immigration Review Responses to I-Team Immigration Backlog Report – NBC4 Washington http://www.nbcwashington.com/news/local/US-Department-of-Justice-Executive-Office-for-Immigration-Review-Responses-to-I-Team-Immigration-Backlog-Report-446936203.html#ixzz4toZyt2D9
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook

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No guys, I’m sorry! Much as I love you, and much as I realize that it was was a bunch of meddling politicos and out of touch bureaucrats, with lots of help from a willfully blind Congress, that created these problems over the past 15 years, it’s going to take more than politicos at the DOJ and bureaucrats in Falls Church to solve it.

Committing “to a multi-level strategy to maximize our adjudicatory capacity,” whatever that primo piece of bureaucratic gobbledygook might mean in plain English, isn’t going to cut it. Nor is just throwing more judges and more money at it going to do the trick.

And the answer certainly isn’t more truncation of due process and typical bureaucratic “haste makes waste bogus efficiencies and streamlining” which actually wastes massive amounts of time and money while not getting the job done. The courts are already in a due process crisis. “Speeding up the assembly line” or setting bogus production goals is not the answer. However, some “smart court administration” and “smart enforcement” are part of the solution. Sadly, it’s just not within the “skill set” of the group at DOJ and EOIR who are flailing away at court administration.

Nor, frankly, does it appear to be within the expertise of current DHS/ICE management without some Congressional oversight and accountability (things that have been remarkably absent in this Congress). Old saying: Garbage In = Garbage Out, and right now ICE Enforcement, Detention, and Legal Counsel Programs are in “Garbage Truck Mode.” If Congress doesn’t step in, I think the Article III Courts eventually will, if only as an act of self-defense. Nor is evading the Immigration Court system with unconstitutional proposals for expanding “expedited removals” the answer.

The DHS Enforcement System and the Immigration Courts are already squandering resources and wasting the taxpayers money at alarming rates. “Big-time reforms” must precede the injection of massive resources into a totally broken system. And that goes for putting some Congressional brakes on the “gonzo” enforcement now being carried out by DHS, and their mismanagement of the ICE Legal Program, which is a key part of the problem.

Next up: My Response: I take on the DOJ/EOIR Bogus “Strategy” and tell you what really needs to be done to restore due process to a broken court system.

PWS

09-26-17

SEE PT. II OF NBC4’S “CRISIS IN THE IMMIGRATION COURTS” FEATURING INTERVIEWS WITH ME — Understand Why This System Must Be Changed NOW!

Here’s a link to the video of Jodie Fleischer’s “Late Night Report on the Crisis in the Immigration Courts” from last night’s 11PM Version of News 4:

http://www.nbcwashington.com/news/local/Massive-Immigration-Case-Backlog-Takes-Years_Washington-DC-447835143.html

Here’s an updated story from the I-Team on the human costs of the backlog and the mindless policies of the Trump ‘administration that are making things even worse. Includes comments from superstar local practitioner Christina Wilkes, Esq.:

“Deportation rates of undocumented immigrants have ticked up in the federal Immigration Court for the first time in eight years as President Donald Trump starts to make good on his promise to expel millions of people. But even as the Trump administration expands its dragnet, the court is so backlogged that some hearings are being scheduled as far in the future as July 2022.

The long delays come as immigration courtrooms struggle with too few judges, only 334 for a backlog of more than 617,000 cases, and scant resources on par with a traffic court, said Judge Dana Leigh Marks of San Francisco, the president of the National Association of Immigration Judges.

Delays are the longest in San Francisco, where the court is setting dates more than four years out. Courts in Chicago, Boston, Atlanta, Cleveland, Detroit, Seattle and Arlington, Virginia are right behind with dates in 2021.

Immigration law is complex and the overloaded judges are making decisions about men and women who may have been tortured or raped, their children abused or forced to witness horrible acts, or who fear they will be killed if they return home.

“I compare the immigration courts to traffic courts and the cases that we hear – they are death penalty cases.”
Judge Dana Leigh Marks

“I compare the immigration courts to traffic courts and the cases that we hear – they are death penalty cases,” said Marks, a judge for 30 years who was speaking in her capacity as association president. “And I literally get chills every time I say that because it’s an incredibly – it’s an overwhelming job.”

The backlog in Immigration Court, which unlike other courts is not independent but part of the U.S. Justice Department, has been growing for nearly a decade, up from about 224,000 cases in fiscal year 2009. The average number of days to complete a deportation case has risen from 234 in 2009 to a projected 525 this year.

A couple in Immigration Court in New York City for the first time on Sept. 21 came to the United States to escape violence in Ecuador, they said, overstaying a visa as they applied to remain permanently in 2013. They were expecting to finally to explain their circumstances to a judge, but instead they were out the door in less than five minutes with a return date in 2020.

“I don’t even know, how do I feel,” said the woman, who did not want to give her name. “I feel frustrated.”

The logjam began during the Obama administration as President Barack Obama boosted immigration enforcement while a divided Congress cut spending. The Justice Department saw a three-year hiring freeze from 2011 to 2013, which then became even worse when tens of thousands of women and children came across the border escaping violence in Central America.

“I don’t even know, how do I feel,” said the woman, who did not want to give her name. “I feel frustrated.

“The problem was years in the making but this administration is making it much, much worse,” said Jeremy McKinney of the American Immigration Lawyers Association.

Obama was famously called the “deporter-in-chief” after he not only targeted immigrants with criminal records for deportation but also instituted formal removal proceedings for an increased number of unauthorized border crossers, according to a January study by the Migration Policy Institute. At the same time, fewer people were crossing the border because of a better economy in Mexico and fewer jobs in the U.S. after the recession.

The focus on criminals — whose hearings, when they were detained, were either short or waived — resulted in quick deportations, McKinney said. The Trump administration is targeting a much broader group and includes people who might be eligible to stay and that puts more strain on the courts, McKinney said.

“They will arrest anyone that has a pulse and that they suspect is in the United States without permission regardless of if that person poses a risk to our community,” he said.

To clear the backlog, the Trump administration has proposed hiring 75 new Immigration Court judges plus staff, a number the House has reduced to 65, and it has considered expanding the use of deportations without court approval. In the meantime it has moved some judges closer the border temporarily, but that leaves behind even greater backlogs in their home courts.

But the job of an immigration judge is difficult and those in the courts warn that hires are not keeping up with departures. Long background checks dissuade many except for attorneys already working for the government from applying, they say.

The government is trying to quicken the process by resisting delays it formerly acceded to, McKinney said. For example, he said, government lawyers are now opposing a temporary halt to deportation cases to allow an immigrant who might be eligible to remain in the United States to take the steps that are necessary.

“So you’ve got people that are eligible for green cards but are not able to pursue it because suddenly the government is opposing the motion to close those cases,” he said.

And it is also reopening cases that were closed during the previous administration, a move that could add to the delays, McKinney said.

“They’re taking old cases and dumping those into current dockets that are already overflowing,” he said. “These individuals are ones that were previously determined that they were not priorities for deportation.”

One consequence of the logjam until recently had been that judges were deporting fewer immigrants. Last year, just 43 percent of all cases ended with a deportation removal, down from 72 percent in 2007.

That downward trend is beginning to reverse this year. The deportation rate rose slightly over the first 10 months of the 2017 fiscal year, to 55 percent, from 43 percent for all of the previous fiscal year. Among immigrants in detention, the deportation rate rose to 72.3 percent.

The outcome of a case can depend on the location of a court. Georgia has deported the vast majority of immigrants in court this year, New York ousted less than a third. Houston has expelled 87 percent of the immigrants, while Phoenix is at the low end with 20 percent.

You appear to be in Virginia. Not your state?

In Virginia, 56.0% of immigrants who go to court are deported.

See the rates of deportation in state immigration courts across the country:

Fiscal year 2017 (October through July); Source: TRAC

WHO ARE THESE IMMIGRANTS?

More than half of the 11 million undocumented immigrants in the United States are from Mexico but their number has declined by about 1 million since 2007. They have been replaced by those fleeing violence in Guatemala, El Salvador and Honduras, plus immigrants from elsewhere. They live mostly in California, Texas, Florida, New York and New Jersey though the state with the highest percentage of undocumented immigrants is Nevada.

Nearly 60 percent arrived in the U.S. before 2000 and a third have been here for more than 20 years. Eight million of the 11 million have jobs. They make up 5 percent of the country’s labor force, mostly in agriculture, construction and the hospitality industry. They are much younger and somewhat more male than the population as a whole.

The long delays in Immigration Court are jeopardizing some immigrants’ chances. They risk losing touch with witnesses they will need or the death of relatives who would enable them to stay. They may have children back in their home country who are in danger. And although they are entitled to lawyers, they must pay for them.

“And so it is very frustrating and stressful frankly for the litigants in our courts to be in that limbo position for such a long period of time,” Marks said.

The couple who fled violence in Ecuador has built a new life in the U.S. She is now a teacher, he works with hazardous materials and they have three American-born children. With no resolution of their case, they remain in that limbo.

“We’re stuck here,” she said.

Christina Wilkes, an immigration lawyer at Grossman Law in Rockville, Maryland, is representing a mother, identified as Z.A., who arrived with her daughter and son from El Salvador in 2014 after a gang tried to recruit the daughter.

DMV Immigration Courts Scheduling Hearings for 2021

In Washington, D.C., Maryland and Virginia the number of cases has more than tripled in past five years, with some cases taking more than four years to be heard.

The daughter’s application for permanent residency has been pending since the beginning of the year when a judge granted her asylum, Wilkes said. But the mother still does not have a date for a judge to hear her asylum case, though the facts for both are nearly identical.

“For her, where her likelihood of success is relatively high, it’s really frustrating because she wants a resolution,” Wilkes said.

Andres, whose last name NBC is witholding, left Guatemala in August 2014, because he was discriminated against there, he said. He speaks Mam, a Mayan language, and dressed in traditional clothing, both of which made him a target.

“Because I’m indigenous, that’s why they discriminated against me,” he said. “A policeman would beat me, and we don’t have any rights because they rule. The Spanish speakers are the ones who rule all parts of the country.”

He has a work permit, he said, and is employed in construction. But he has twice had his asylum hearing postponed in Immigration Court in San Francisco and says he is scared that as he waits for his new date in January he will detained and deported.

San Francisco Leads Nation in US Immigration Court Calendar Delays

Those waiting to have their asylum cases heard find the reality that there currently aren’t enough judges and staff to handle the demand leaving some applicants forced to wait for years while their witnesses and key evidence disappear.

“Because that is happening where I live in Oakland,” he said.

Shouan Riahi, an attorney with the non-profit Central American Legal Assistance in Brooklyn, New York, said that the delays are causing particular problems for those seeking asylum. If a court date is set years in the future, they might not think it’s important to meet with a lawyer immediately or know they face a one-year deadline for asylum applications.

“So that creates a whole host of issues because a lot of people that are applying for asylum now are people who didn’t have their hearing scheduled within a year,” he said. “And never went to see an attorney because why would you if your case is in 2019 and now their cases are being denied because they haven’t filed for asylum within a year.”

Some judges are counting the delays as an exceptional circumstance and are accepting the applications as filed on time, but others are turning immigrants away. Riahi’s office is appealing those cases and he expects some to end up in federal circuit court.

Other who are getting caught up in the delays are children who have been neglected, abused or abandoned and are eligible for special immigrant juvenile status. In some courts they are being deported before they receive their visas, he said.

Paul Wickham Schmidt, a retired immigration judge who served in Arlington, Virginia, for 13 years, said that the delays do not serve due process or justice.

“It’s not fair either way,” he said. “It’s not fair to keep people with good claims waiting, but it’s not really fair that if people have no claim their cases sort of aimlessly get shuffled off also. That leads to loss of credibility for the system.”

ABOUT THE DATA

These stories are based on enforcement, budget and demographic data from the federal government and nonprofit groups.

Our primary source for information on operations of the Immigration Court was the Transactional Records Access Clearinghouse. TRAC, a nonprofit at Syracuse University, has collected and organized data from federal law enforcement agencies for decades and makes that data available to the public. Its website is trac.syr.edu. TRAC is funded by grants and subscription fees; NBC subscribed to TRAC during this project.

Information about the size and demographics of the undocumented immigrant population came from two primary sources: the Pew Research Center and the U.S. Department of Homeland Security. Both groups use a roughly similar technique, the residual method, to estimate the undocumented population, and reach similar estimates of its size. For a brief description of the residual method, go here.

Some of the best information on the immigrant population as a whole as well as historic perspective on immigration enforcement comes from the Department of Homeland Security’s Yearbook of Immigration Statistics. It is available here. The most recent year for which statistics are available is 2015, though 2016 statistics should be provided shortly.”

*******************************************

Here’s a link that will get you a version where all the links graphs, and charts work: http://www.nbcwashington.com/news/national-international/Immigration-Crisis-in-the-Courts-446790833.html

Next up, the EOIR/DOJ response!

PWS

09-26-16

HERE’S PT. I OF NBC4’s “CRISIS IN THE IMMIGRATION COURTS,” FEATURING JUDGE DANA LEIGH MARKS & ME DISCUSSING BACKLOGS!

SEE THE I-TEAM’S JODIE FLEISCHER’S REPORT HERE (PT I):

http://www.nbcwashington.com/investigations/Crisis-in-the-Courts-DMV-Immigration-Courts-Scheduling-Hearings-for-2021-446917903.html

“Crisis in the Courts: DC-Area Immigration Courts Scheduling Hearings for 2021

By Jodie Fleischer, Rick Yarborough, Steve Jones and Nelson Hsu

“Immigration is clearly an issue that divides the nation. Who should be allowed to stay in the US? Who should have to go?

Whether you support immigration or oppose it, the backlog in our nation’s immigration courts will disturb you.

Immigration: Crisis in the Courts

People who shouldn’t be here, get to stay for years and build a life while they wait. And those who do legally deserve to stay may have family in danger back home, while their cases face delay after delay.

The News4 I-Team spent months working with NBC investigative teams across the country to examine our nation’s immigration case backlog.

In Washington, D.C., Maryland and Virginia the number of cases has more than tripled in past five years, with some cases taking more than four years to be heard.

“The quality of their lives are deeply affected by whether or not they’re allowed to stay,” said National Association of Immigration Judges President Dana Leigh Marks, adding that the decisions are incredibly tough.

U.S. Department of Justice Executive Office for Immigration Review Responses to I-Team Immigration Backlog Report

They often involve people who faced violent assaults, religious persecution, even government oppression and torture in their home country.

“The cases that we hear, they are death penalty cases,” said Marks. “A lot of people tell us that they fear for their very life if they’re sent back to their home country.”

And by the time many of them make it into a courtroom, their definition of “home” has likely changed.

‘I Consider Myself American’

Jonathan Claros was born in El Salvador, but his home is now Montgomery County, Maryland.

“I consider myself American. I know some people are against that,” he said.

At 29, he’s been here almost half his life. He taught himself English, graduated from high school in Gaithersburg and works in construction.

“This country is made of immigrants,” Claros said. “It doesn’t matter what color they are, or race or ethnicity.”

What does matter is whether you come here legally.

Just last month, ICE deported Jonathan’s brothers, the youngest was a 19-year-old soccer star who was set to start college on a scholarship.

“They came here when they were little. They know better this country than where they were born,” Claros said.

Their parents and sister are all in Maryland and equally worried about the current state of the U.S. immigration system.

“What they’re doing right now for me is, you know, it’s devastating,” Claros told the News4 I-Team. “A lot of families have been separated from their loves.”

Three years ago he married a U.S. citizen and filed paperwork to get legal status.

“It’s been kind of hard; it’s been almost a year waiting for an answer,” he said of the delay.

US Immigration by the Numbers

An overview of immigration in the U.S., by the numbers.

(Published Monday, Sept. 25, 2017)

‘It’s a Disaster. I Think It’s Moving Toward Implosion’

The nationwide backlog of immigration cases topped 617,000 this summer. The courts in Arlington and Baltimore handle all of the cases for D.C., Maryland and Virginia — more than 58,000 of them as of July. And that doesn’t even include immigrants who are here illegally and completely undocumented.

The News4 I-Team found a new immigrant walking into the Arlington court today could have to wait until December 2021 for a hearing; that’s the second longest delay in the nation.

“It’s a disaster. I think it’s moving toward implosion,” said Judge Paul Wickham Schmidt, who retired last year from Arlington’s immigration court, after 13 years on the bench.

“We probably had 9 to 10,000 each on our dockets,” said Schmidt. “I think sometimes we minimize the difficulty of having your life on hold.”

He said the system is painfully slow for several reasons, and the first is really basic: The entire system operated on paper. With no way to e-file cases or review briefs or documents online.

“They don’t let you see the inside of an immigration court. If they did, they’d clean it up! But there are files piled all over: They’re in the corridors, they’re all over the desks, they’re under desks,” said Schmidt, who can speak freely since he’s retired.

He said judges have to physically be in their offices to review files, which is especially difficult with a new administration policy that reassigns some judges to hear cases at the border.

That leaves courtrooms empty back in their home court and a full docket of cases that get pushed to the back of the line.

During the delay, witnesses who could help the immigrant’s case might disappear, and attorneys and judges could move or retire, causing more delay.

“The cases that are actually ready to go are being put to the end, and the judges are being assigned to cases of recently arrived individuals, many of whom haven’t had time to get lawyers. So I think it’s a misuse of resources,” said Schmidt.

He said there aren’t enough attorneys to keep the system moving, and having representation significantly impacts someone’s chance of staying.

The new administration has also eliminated prosecutors’ discretion to dismiss or delay thousands of low priority cases: People who haven’t committed a crime or have family members who are citizens.

“There’s only so much judge time,” said Schmidt, “and if you use it for people who are low priorities, then there’s some other person who isn’t getting a hearing.”

He added that with political priorities constantly shifting, judges should have control over which cases to call first.

‘People Are Being Hurt by These Delays’

“Unfortunately despite our best efforts, there are people being hurt by these delays, and they can be avoided if we would get sufficient resources,” said Judge Marks.

She said the court needs twice as many judges to tackle that backlog. But right now, the court’s budget and its management are within the Department of Justice, which is another major issue for the judges association.

“The way to assure stakeholders, the people who come before us, that they are being treated fairly is that we should be taken out of the Department of Justice and made a neutral court system,” said Marks.

She said Congress needs to look at the whole system and take action so the political climate surrounding immigration doesn’t impact whether or when people get their day in court.

“It is not a Democratic or Republican issue,” said Marks. “If you want to have increased focus on the border courts, fine. But build courts, hire judges and put them there before you start that program.”

The Justice Department told the News4 I-Team it’s committed to increasing the number of judges; an additional 65 judge positions are already budgeted for next year.

But that still doesn’t solve the problem of dozens of vacant positions, and sitting judges retiring.

There’s also an agency-wide review already underway which aims to identify ways to increase efficiency, through changes to court procedures and technology.

The DOJ’s Executive Office for Immigration Review, which manages the court system, says its mission is to fairly, expeditiously and uniformly interpret and administer the nation’s immigration laws.

‘You’re Not Going to Get Every Single One Right’

Like Jonathan Claros, nearly half of all of the immigrants caught in the backlog in our area are from El Salvador — more than 28,760 people. But Judge Schmidt said the courts do not treat all nationalities equally.

“The law is sort of tough on Central American cases. Some of them can make it, some of them don’t,” said Schmidt, “An Ethiopian with an asylum claim, they almost always get granted.”

The court data shows the location also factors into whether an immigrant has a better chance of being able to stay.

The national average is just over 56 percent. Here in the D.C. area, it’s 61 percent. Los Angeles is 70 percent.

“Clearly, the attitudes of the judges and how they feel about asylum law has quite a bit to do with it,” said Schmidt, “If I were an immigrant, I’d rather be in California than Atlanta, Georgia. Any day.”

In one Georgia court, only 13 percent of people are allowed to stay in the U.S.

Schmidt said the appellate boards also lack consistency in their decisions.

“As a result, judges don’t get the guidance they need. The board doesn’t crack down on judges who are way out of line with what the law should be,” he said, adding that immigrants deserve to know their fate sooner.

Our system simply doesn’t allow for that.

Schmidt said with the volume of cases, the gravity of his difficult decisions was often emotional.

“You’re not going to get every single one right, and you think about the lives that you might have destroyed that you could have saved, and of course that weighs on you,” he said.

Jonathan Claros said he still believes in the American dream. He’s just worried his family’s heartache will keep growing while he waits for an answer.

“Everybody’s afraid,” he said. “They go out, but they don’t know if they are going to come back home again. It’s hard to live like that.”

Reported by Jodie Fleischer, produced by Rick Yarborough, shot and edited by Steve Jones.

Source: Crisis in the Courts: DC-Area Immigration Courts Scheduling Hearings for 2021 – NBC4 Washington http://www.nbcwashington.com/investigations/Crisis-in-the-Courts-DMV-Immigration-Courts-Scheduling-Hearings-for-2021-446917903.html#ixzz4tjp7to2P
Follow us: @nbcwashington on Twitter | NBCWashington on Facebook”

See Part II on News4 at 11:15 tonight!

PWS

09-25-17

BREAKING: 5th Cir. Says Texas Cities Must Comply With DHS Detainers, But Blocks Laws Punishing Free Expression & Non-Cooperation!

http://www.reuters.com/article/legal-us-usa-texas-immigration/u-s-appeals-court-allows-part-of-texas-law-to-punish-sanctuary-cities-idUSKCN1C02QC

Reuters reports:

“AUSTIN, Texas (Reuters) – A U.S. appeals court on Monday issued a mixed decision on a Texas law to punish “sanctuary cities” by allowing a few parts of the law to take effect but blocking major parts of it.

The U.S. Court of Appeals for the Fifth Circuit allowed the part of the Texas law that called on localities to abide by detainer requests from federal authorities to hold people in local jails to allow for checks of suspected U.S. immigration law violations.

But the court left in place a lower court decision to block a part of the law that would punish local officials who criticized state policies on immigration enforcement.

The appeals court has yet to render a full decision on the law.”

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Read the full article at the link.

This appears to be an important victory for the Trump-Sessions program of requiring jurisdictions to honor DHS Detainers issued by non-judicial officers. Seems clear that the 5th Circuit ultimately will vacate the injunction on this part of Texas SB 4.

PWS

O9-25-17

“More Dangerous Than Weed.” — Gonzo Apocalypto Gets A Warm “Welcome” To Portland, OR!

https://www.washingtonpost.com/news/post-nation/wp/2017/09/23/attorney-general-jeff-sessions-visited-portland-of-course-there-was-a-protest/

Leah Sottile reports for the Washington Post:

“Portland is a sanctuary city in a sanctuary state — a place where officials have scoffed at threats from the Trump administration, where court employees have shuffled illegal immigrants out through employee entrances when Immigration and Customs Enforcement personnel conducted raids, and where local law enforcement officials have argued that enforcing federal immigration policies is not their job.

Sessions’s appearance here Tuesday was brief. He spoke to a group of federal employees — ICE, FBI, Drug Enforcement Administration, and Bureau of Alcohol, Tobacco, Firearms and Explosives — for 18 minutes in the “oath room” of a Pearl District building, the place where people recite the Oath of Allegiance before they are granted U.S. citizenship. Sessions railed against sanctuary cities, places he called a “trafficker’s, a smuggler’s or gang member’s best friend.”

Attorney General Jeff Sessions speaks to federal employees in Portland, Ore., on Tuesday. (Stephanie Yao Long/The Oregonian via AP)
But outside, the protest against Sessions lasted for hours. A group of a dozen protesters leaned on a metal barricade just before 11 a.m. — hours before Sessions even touched down in Portland. And they were ready.

Juan Rogel, 26, is a leader of Milenio.org, a group that helps engage Latinos in political action and was one of several groups that organized protesters Tuesday.

“We want to send a clear message that he is not allowed to come here,” Rogel said of Sessions. “We’re pissed off.”

Rogel said it’s essential for Latinos to organize and for Sessions to see, if only for a moment, that people here aren’t welcoming of him.

“My dad used to say, ‘If you knock on the door for opportunity and they don’t open it, you have to break it down,’ ” Rogel said. “We haven’t been heard. We are young people working on a legacy for tomorrow.”

**********************************************

Read the complete article at the link.

No, Gonzo, “sanctuary cities” are not a “smuggler’s best friends.” Look in the mirror: you, Gonzo, are the smugglers’ and gangsters’ “best friend” with your xenophobic policies intended to drive a wedge between the Hispanic communities across the nation and law enforcement and to heap shame and blame on law-abiding residents who are just trying to make a living helping America out.

I can guarantee that smuggling and gang violence won’t be solved by a bunch of White Nationalists sitting at the DOJ thinking about the next attack they can make on Hispanic America. There is no “silver bullet” solution to deep-seated problems. But, whatever the solution might be, it’s going to take some reflection and lots of help, trust, assistance, and sharing of information with the Hispanic community which would like to get rid of gangs as much as you would (because they are much more likely to be victims than you and your white buddies are) and whose undocumented members (usually intermingled with family or neighbors in legal status) would vastly prefer being allowed to come to the United States through legal channels rather than paying smugglers.

Almost forty years ago when I was counsel to the “Legacy INS” Enforcement, among other things, one of the few effective tools we had for breaking up smuggling rings involved fairly sophisticated undercover operations. These, in turn, almost always involved agents, local law enforcement, or informants from ethnic communities.

Why would anyone from the Hispanic community want to risk his or her life to help someone like Gonzo, who disses them, denies their achievements, and intentionally minimizes their monumental contributions to America’s success and prosperity at every turn?

PWS

09-25-17

NYT: ADMINISTRATION PLANS TO FILL PRISONS WITH PARENTS WHOSE CHILDREN ARE SMUGGLED INTO THE UNITED STATES!

https://www.nytimes.com/2017/09/24/us/politics/parents-illegal-immigrants-human-smuggling.html?smprod=nytcore-ipad&smid=nytcore-ipad-share

Caitlin Dickerson and Ron Nixon report for the NYT:

“WASHINGTON — The Trump administration is stepping up its pursuit of parents who paid to have their children illegally brought into the United States, according to people familiar with the matter. The effort, part of a widening crackdown on illegal immigration, is aimed at discouraging families from paying human smuggling organizations.
As part of a new round of immigration sweeps, officials are targeting parents or other relatives who were deported, re-entered the United States and then had their children smuggled across the border. Legal experts say cases of illegal re-entry are faster and easier to prove than a smuggling charge.
Immigration and Customs Enforcement officials said it was common for parents or family members in the United States to make illegal payments to smugglers to arrange for children to be brought to the border, where they turn themselves in and are often eventually handed over to their relatives. Tens of thousands of women and children have arrived at the border in the last three years, beginning with a surge of arrivals in the summer of 2014, many seeking refuge from gang violence and extreme poverty in Central America.
It was not clear how many people would be affected by the effort to arrest and prosecute family members for illegal re-entry, but officials familiar with the plan said it would serve as a deterrent to stop other parents and relatives from paying to have children brought to the United States as unaccompanied minors. The officials spoke on the condition of anonymity because they were not authorized to discuss enforcement policies publicly.
ICE officials said they had arrested hundreds of people for smuggling children and referred dozens of cases to the Justice Department for prosecution, including many for illegally re-entering the country and then paying to have children smuggled across the border.
“The risks associated with smuggling children into the U.S. present a constant humanitarian threat,” ICE officials said in a statement. “The sponsors who have placed children directly into harm’s way by entrusting them to violent criminal organizations will be held accountable for their role in these conspiracies.”
Some children reported being raped or held hostage by smugglers for more money. Others have been abandoned by smugglers as they try to cross the border.
Immigration advocates called the new enforcement policy a heartless way to try to reduce smuggling.
“It’s extremely cruel when you started shutting down refugee applicants and rescinding protections for children brought to the country at a young age, to send this kind of message to parents trying to get their kids to safety,” said Chris Rickerd, policy counsel with the American Civil Liberties Union in Washington.
Smuggling cases are among the most challenging to prove, and the biggest hurdle is identifying witnesses, who are likely to be undocumented and unwilling to help, according to Michael J. Wynne, who spent 12 years as an assistant United States attorney in the Rio Grande Valley in South Texas. Targeting parents for re-entering the country illegally, rather than trying to go after them for smuggling, presents prosecutors with a higher likelihood of success.
“It’s a throwdown case,” he said. “You’re going to prosecute the crime where you get the biggest bang for your buck.”
Officials in ICE’s Homeland Security Investigations division have been told to look for cases that can be brought to United States attorneys for possible prosecution, according to people familiar with the enforcement effort. Because prosecutions for illegal re-entry carry a five-year statute of limitations, ICE special agents are also looking to see if they can prosecute relatives of unaccompanied children for other immigration-related crimes, such as giving false statements, according to people familiar with the effort.
Convictions for illegal re-entry are politically popular among immigration restrictionists.
According to Justice Department data analyzed by the Transactional Records Access Clearinghouse, a nonprofit research group at Syracuse University, illegal re-entry made up the bulk of prosecutions for illegal immigration for the last five years.
The Trump administration has made no secret of its plans to go after parents living in the country illegally who bring in their children.
Earlier this year, administration officials said that the thousands of children who arrived each year as unaccompanied minors would no longer be protected against deportation, reversing an Obama administration policy. John F. Kelly, then the Homeland Security secretary and now the White House chief of staff, wrote a memo in February saying parents would be subject to criminal prosecution if they had paid human traffickers to bring children across the border.
The children, who turn themselves in to the Border Patrol, are handed over to the Department of Health and Human Services’ Office of Refugee Resettlement. The office will either place the children in a shelter or release them to a family member. Immigration officials said most of the unaccompanied children apprehended at the border were eventually turned over to a family member, most often a parent, already living in the United States.
Homeland Security officials acknowledge that many of the children are fleeing violence in their home country, but they say that paying smugglers to transport them to the border endangers the children.”

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Read the full article at the link.

Seems like a pretty typical Trump Administration approach: please the White Nationalist/restrictionist base, fill the prisons with nonviolent “criminals,” rack up some nice stats, and make sure not to deal with the root causes of undocumented migration.

PWS

09-26-17

AWARD-WINNING NBC INVESTIGATIVE REPORTER JODIE FLEISCHER & THE “I-TEAM” TACKLE THE MAN-MADE DISASTER IN OUR UNITED STATES IMMIGRATION COURTS — Including A Clip Of Her Interview With Me — MUST SEE TV, MONDAY, SEPT. 25, ON THE 6 PM SEGMENT OF NBC4 NEWS!

Those of you who have seen Jodie in action know that she is a brilliant, hard-hitting, no holds barred investigative journalist who always gets to the bottom of her story — no matter how little some public officials want the truth to come out! She and her all-star investigative team, including Senior Investigative Platform Manager Rick Yarborough and Photojournalist Editor Stephen Jones, are relentless.

Using her contacts throughout the nation, Jodie shows you what our Government has been trying to hide for years — the ridiculous backlogs and impending failure of one of our nation’s largest, perhaps the largest, Federal Court system! I was stunned and amazed by the amount of technical knowledge and feeling about the human side of this needless national tragedy that Jodie brought to her interview with me.

The judges and staff of the Immigration Court work hard. That’s always been true. But, that has not helped many of the vulnerable individuals caught up in the morass and not always finding the justice that our laws promise them. Similarly, it does not serve the true needs of DHS enforcement to have results determined by the number of pending cases in a particular court, many of which should have long ago been settled by the responsible exercise of prosecutorial discretion as they would have been in almost any other high volume court system in America.

What has happened to the United States Immigration Courts under the control of the U.S.Department of Justice is a sad tale of bureaucratic incompetence, intransigence, inbreeding, improper influence by enforcement authorities, and inability to provide the independent judiciary that can deliver on the court’s forgotten promise of “guaranteeing fairness and due process for all.” This has combined with a disturbing lack of Congressional oversight and reform. How can we clean up this tragic “train wreck” that threatens to topple the entire Federal Court System and to undermine our nation’s Constitution and our ideals?

Over three quarters of U.S counties now have residents in the Immigration Court system! But, even if you aren’t one of them, or a relative, friend, neighbor, employer, teacher, student, employee, patient, customer, or fellow parishioner of one of them, this mess affects you as an American. If this is the way we treat the most vulnerable among us, what’s going to save you when your precious rights are challenged in a U.S. justice system that has lost sight of justice?

Tune in Monday night to find out more about one of “America’s Most Underreported Crises.” Those interested should be able to “live stream” NBC4 News at 6 with the NBC4 app. I assume it will also be available online in the NBC4 app archives under “Investigative Reporting” once the piece has aired.

PWS

09-23-17

UPDATE:

Part II Of Jodie’s Report, which specifically examines the Baltimore and Arlington Immigration Courts, will air at 11:15 PM tonight.

MORE IMMIGRATION COURT INSANITY! — DHS REPORTEDLY STRIPS OWN ATTORNEYS OF AUTHORITY TO NEGOTIATE BONDS, WAIVE APPEALS!

Sources from several areas of the country have informed me that there is a new, of course unpublished and unannounced, policy at DHS prohibiting ICE Assistant Chief Counsel who represent the agency in U.S. Immigraton Court from either negotiating bonds with private counsel or waiving appeals from U.S. Immigraton Judge decisions ordering release on bond.

This is just further evidence of the consequences of having ignorant proponents of “gonzo enforcement” in charge of both the DHS and the U.S. Immigraton Courts at the Department of Justice.

First, negotiated bonds are one of the key ways of making bond dockets move forward in an efficient manner in the U.S. Immigraton Courts. Bonds are initially sent by ICE Enforcement personnel, often on an arbitrary or rote basis. Without authority to negotiate bonds, particularly in advance, each bond hearing will take longer. Moreover, since bond cases take precedence in Immigraton Courts, longer bond dockets will further limit the already inadequate court time for hearing the merits of removal cases. With a growing backlog of over 600,000 cases, this appears to be an intentional effort to undermine due process in the Immigration Courts. Typically, when I served at the Arlington Immigration Court, at my encouragement, the parties agreed on most bonds in advance and neither party appealed more than 1%-2% of my bond decisions. Indeed, discussing settlement with the Assistant Chief Counsel in advance was more or less of a prerequisite for me to redetermine a bond.

Second, appealing all bond release decisions will also overburden the already swamped Appellate Division of the U.S. Immigration Courts, the Board of Immigraton Appeals (“BIA”). As in the Immigraton Courts, bond appeal cases at the BIA take precedence and will push decisions on merits appeals further back in line.

Third, Immigraton Judges usually only prepare a bond decision (known as a “Bond Memorandum”) in cases where a bond appeal is actually taken. Since that currently happens only infrequently, the process is manageable. However, if appeals are taken in more cases, and Bond Memoranda are “priorities,” Immigration Judges will have to spend more time writing or dictating Bond Memoranda, further limiting their time to hear cases on the merits. Moreover, by making it more burdensome to release individuals on bond, the system actually creates an inappropriate bias against releasing individuals on bond.

Fourth, yielding to inappropriate pressure from the “Legacy INS,” the Clinton DOJ gave Assistant Chief Counsel regulatory authority to unilaterally stay the release of a respondent on bond under an Immigraton Judge’s order provided that: 1) the Director originally had set “no bond;” or 2) the original bond was set at $10,000 or more. That means that the DHS can effectively neuter the power of the Immigraton Judge to release an individual on bond pending the merits hearing. By contrast, the respondent has no right to a stay pending a decision by the Immigraton Judge not to allow release, unless the BIA specifically grants a stay (which almost never happens in my experience).

Fifth, unlike petitions to review final orders of removal, which must be filed with the appropriate U.S. Court of Appeals at the conclusion of all proceedings, judicial review of bond decisions is sought in the U.S. District Courts. More decisions denying bonds have the potential to create new workload issues for the U.S. District Court.

Fifth, the individuals in the DHS most with the most knowledge and expertise in how the U.S. Immigration Courts work are the Assistant Chief Counsel. Stripping them of their authority to control dockets and settle cases, authority possessed and exercised by every other prosecutor in America, is both dumb and insulting. In what other system do the “cops” have the authority to overrule the U.S. Attorney, the District Attorney, or the State’s Attorney on matters they are prosecuting in court? It also makes the Assistant Chief Counsel job less professional and less attractive for talented lawyers.

In short, the Trump Administration is making a concerted attack on both common sense and due process in the U.S. Immigration Court system. The results are not only unfair, but are wasting taxpayer funds and hampering the already impeded functioning of the U.S. Immigraton Court system. Unless or until the Article III Federal Courts are willing to step in and put an end to this nonsense, the quagmire in the U.S. Immigration Courts will become deeper and our overall U.S. justice system will continue to falter.

We need an independent Article I Immigraton Court now!

PWS

09-23-17

USE WITH EXTREME CAUTION! — HON. JEFFREY CHASE ON THE USE OF SO-CALLED AIRPORT STATEMENTS IN REMOVAL PROCEEDINGS — They Often Prove To Be Highly Unreliable!

https://www.jeffreyschase.com/blog/2017/9/21/the-reliability-of-airport-statements-in-removal-proceedings

Jeffrey writes in his blog:

“In August 2016 I organized and moderated the mandatory international religious freedom training panel at the immigration judges’ legal training conference in Washington, D.C. One of the panelists from the U.S. Commission on International Religious Freedom (“USCIRF”) informed me of a just-published report she had co-authored.

The report, titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal, is the follow-up to a 2005 study by USCIRF of the treatment of arriving asylum seekers in their interactions with the various components of DHS and the Department of Justice involved in the expedited removal process. What jumped out at me from the report was the first key recommendation to EOIR: “Retrain immigration judges that the interview record created by CBP is not a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly.”

The new report referenced the Commission’s 2005 findings, which it described as “alarming.” The earlier study found that “although they resemble verbatim transcripts, the I-867 sworn statements” taken from arrivees by agents of DHS’s Customs and Border Patrol (“CBP”) component “were neither verbatim nor reliable, often indicating that information was conveyed when in fact it was not and sometimes including answers to questions that were never asked. Yet immigration judges often used these unreliable documents against asylum seekers when adjudicating their cases.”

The 2016 report found similar problems with the airport statements taken a decade later. The study found the use of identical answers by CBP agents in filling out the form I-867 “transcript,” including clearly erroneous answers (i.e. a male applicant purportedly being asked, and answering, whether he was pregnant, and a four year old child purportedly stating that he came to the U.S. to work). For the record, USCIRF is a bipartisan organ of the federal government. So this is a government-issued report making these findings.”

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Read the rest of Jeffrey’s analysis at the above link.

Too bad that the Trump Administration has eliminated Annual Immigration Judge Training! With a bunch of new Immigration Judges on board and the push to rubber stamp removals as quickly as possible to comply with the President’s Executive Orders on Enforcement, I guess there is no time for training in how to make correct decisions.

In fact, when judges have enough experience to know what’s really happening and are able to selectively regulate the speed of cases to make sound decisions and achieve due process, they find out that there are lots of problems in how the DHS prepares and presents cases, not all of which immediately meet the eye.

To state the obvious, how would an unrepresented respondent in detention get together the necessary Circuit Court case law to learn and effectively challenge unreliable airport statements introduced by DHS Counsel? How would he or she subpoena Immigration Officers or get documentation necessary to show that many airport statements are prepared by rote with exactly the same information in the same language. Mistakes as to age, gender, and “best language” of applicants are common, suggesting that the reports too often have little to do with the actual facts of a particular case.

Short answer, they wouldn’t! As a result, the chances of the Imigration Judge using unreliable information to reach an incorrect decision against the respondent greatly increase.

And their use in the “kangaroo court” procedure known as “Expedited Removal” where enforcement officers make the decisions is prima facile problematic. Someday, all of the Article III Judges who have turned a blind eye to this unconstitutional procedure will have their judicial records forever tarnished in the light of history.

No wonder this Administration likes to detain individuals in out of the way locations (where conditions are coercive and lawyers are not readily available) to make their removal stats look good. And, while most Immigration Judges are conscientious, without a good lawyer to help pick apart the weaknesses and inaccuracies that are often in airport statement, invoking concepts drawn from Federal case law, the possibility of an incorrect or unjust decision is much greater.

We need an independent Article I U.S. Immigraton Court whose sole objective is achieving due processs and making correct legal decisions. And, that would include providing regular in person judicial training from a wide range of sources, including academic experts and those with litigation experience outside the government, on how to fairly evaluate evidence. It would also include a focus on insuring that every individual who goes to a “Merits Hearing” in Immigraton Court has a fair chance to be represented by counsel and reasonable access to his or her lawyer and the evidence and resources necessary to prepare a successful case.

PWS

09-22-17

9TH CIR SAYS DEPARTURE DOES NOT AUTOMATICALLY WAIVE BIA APPEAL: CHAVEZ-GARCIA V. SESSIONS

14-72172

Chavez-Garcia v. Sessions, 9th Cir., 09-21-17 (published)

Before: S. Jay Plager,* Carlos T. Bea, and John B. Owens, Circuit Judges.

Opinion by Judge Bea; Dissent by Judge Owens

* The Honorable S. Jay Plager, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation.

KEY QUOTE:

“As a general rule, ignorance of the law is no excuse[.]” Antonio–Martinez v. INS, 317 F.3d 1089, 1093 (9th Cir. 2003) (citing Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991)). Therefore, one might conclude that Chavez–Garcia validly waived his right to appeal when he departed from the United States because of the mere existence of the departure-waiver regulation coupled with the fact that Chavez–Garcia was represented by counsel during and after his removal proceedings. Our precedent suggests otherwise. Even though regulations that interpret the INA expressly state that an alien may appeal his removal order to the BIA, the Ninth Circuit does not treat an alien’s waiver of his right to appeal as valid unless the IJ “expressly and personally inform[s] the alien that he has the right to appeal.” See Ubaldo–Figueroa, 364 F.3d at 1049; see also 8 C.F.R. § 1003.38(a). By that same logic, even though the departure-waiver regulation expressly states that an alien’s departure constitutes a waiver of his right to appeal to the BIA, an IJ must inform an alien who requests immediate removal that his departure would constitute a waiver of his right to appeal. See Garcia, 786 F.3d at 792 (holding in a slightly different context that “an alien’s waiver of his right to appeal” was not “considered and intelligent” because “the IJ fail [ed] to advise [him]” of information relevant to the future outcome of his case). Without the information that his departure would constitute a waiver of appeal, conveyed from the IJ to the alien, the IJ has no way to know whether an alien’s departure alone qualifies as a “considered” and “intelligent” waiver of his right to appeal his removal order. See Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 806 (9th Cir. 2004) (holding that a petitioner’s due process rights were violated after the IJ failed to inform the petitioner when she reserved her right to appeal that her departure from the United States during her pending appeal to the BIA would constitute a waiver of her right to appeal under 8 C.F.R. § 1003.4). We grant Chavez–Garcia’s petition for review because his departure from the United States, without more, does not provide clear and convincing evidence of a “considered” and “intelligent” waiver of the right to appeal. See United States v. Gomez, 757 F.3d 885, 894 (9th Cir. 2014) (“The government must prove a valid waiver ‘by clear and convincing evidence.’ ”) (quoting United States v. Reyes–Bonilla, 671 F.3d 1036, 1043 (9th Cir. 2012)).8 The IJ’s failure to inform Chavez–Garcia that his departure would constitute a waiver of his previously reserved right to appeal to the BIA renders Chavez–Garcia’s purported waiver invalid. Therefore, his petition is granted. The case is remanded for further proceedings before the BIA.

PETITION GRANTED; REMANDED.”

Here’s Judge Owens’s Dissent:

“OWENS, Circuit Judge, dissenting:

I respectfully dissent. In my view, the February 12, 2013 letter from Chavez–Garcia’s own lawyer—which asked for his immediate removal and stated that Chavez–Garcia did “not intend to appeal” the IJ’s decision—supports the BIA’s decision to dismiss the appeal on waiver grounds.”

**************************************

Interesting case. I think the panel majority got this one right. That being said, although I gave pretty extensive appeals warnings, I don’t remember ever warning a respondent about the consequences of departure unless asked by the respondent or the attorney. But, it wouldn’t have been hard to add that to my “standard language.”

And, I don’t really see the harm in considering the appeal. Here, the BIA’s decision to go with the appeal waiver actually caused more delay and time spent on a systemic basis than adjudicating the appeal on the merits would have.

As I used to say, in the time and energy some Immigration Judges wasted on complicated decisions to deny motions to reopen, I could have reopened the case, held a merits hearing, and adjudicated it on the merits in a way that probably would not have been appealed. “Practical judging” makes sense in a system with more than 600,000 pending cases and not a clue as to how to fairly deal with the backlog.

PWS

09-22-17

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